of a judgment by default in an action in personam, when, it would seem, that the claim in the writ or statement of claim would take the place of the decree. In actions of salvage, wages, and necessaries, interest at Interest. the rate of 4 per cent. runs on the amount awarded, from the date of entering judgment; and such amount is a judgment debt within O. xlii., r. 14, since by s. 76, J. A. 1873, the statute 1 & 2 Vict. c. 110, s. 17, applies to Admiralty actions (The Jones Brothers, 37 L. T. N. S. 164; 3 Asp. M. C. N. S. 478). As to interest in damage and bottomry actions, see ante, Part I., Damage and Bottomry, pp. 57, 91. in action in rem has not The following remarks describe the practice subsequent to the decree:-When judgment is pronounced for a claim Judgment in an action in rem where bail has not been given, the parties usually settle the matter out of Court, and consent where bail to a release of the res, otherwise it will be sold and the been proceeds paid by the marshal into the registry. If it is given necessary to sell the property, a commission for appraisement and sale must be obtained at the registry in pursuance of the decree. If the res has already been appraised a further appraisement is unnecessary; and, as to official appraisement, see ante, O. v., r. 11, p. 153, and in that case a commission for sale only is required upon the filing of Sale. the usual præcipe. The commission, with a præcipe for execution, must be left at the marshal's office. The following rules from A. C. R. 1859 are then applicable : : 124. Every commission for the appraisement or sale of property Sale by under the decree of the Court shall, unless the judge shall otherwise the order, be executed by the marshal or his substitutes. marshal. into Court. 125. The marshal shall pay into Court the gross proceeds of sale Payment of any property which shall have been sold by him, and shall at the of proceeds same time bring into the registry the account of sale, with vouchers in support thereof, for taxation by the registrar. 126. Any person interested in the proceeds may be heard before Objection the registrar on the taxation of the marshal's account of expenses, to mar shal's expenses. Where bail has been given. and an objection to the taxation shall be heard in the same manner as an objection to the taxation of a solicitor's bill of costs. The marshal fixes the time and place of sale, which is duly made known by advertisement; and at such time as announced the property is sold by auction. But, if it is to the interest of the parties concerned, the marshal may sell the res by private contract. If at the auction the biddings do not reach the appraised value, the property cannot be sold, but an order must be obtained from the judge for leave to sell it for a smaller sum. On the production of a bill of sale by the marshal, and an office copy of the order of the Court, the purchaser will obtain a new register of the ship and a perfect title to the property, whilst any one who may have claims against it must enforce them against the proceeds in the registry.1 Where one party obtains the sale of a vessel, which is for the benefit of several claimants, the costs of such sale are the first charge on the proceeds (The Panthea, 25 L. T. N. S. 389; 1 Mar. L. C. N. S. 133). Where bail has been given, if the amount for which the decree is made is not paid, together with the taxed costs, into the registry, the plaintiff must obtain an order from the judge, ordering the defendant and his sureties to pay the amount by a certain day. If this is not done, the plaintiff should sue out a writ of execution in the shape of a fi. fa., under O. xlii., r. 15, or for a writ of attachment under O. xlii. and O. xliv. For the procedure as to these writs, see the above Orders. Where the property has not been arrested nor bail given, the procedure will be the same as in the last mentioned case, except that there are no sureties to proceed against. If a reference has been ordered, proceedings to enforce payment cannot be taken until the report is filed. 1 Proceeds in the registry cannot be attached by process out of the Mayor's Court (The Albert Cresby, Lush. 101). Where the property has been sold and the proceeds paid into Court before the hearing, it is only necessary when judgment is pronounced for the plaintiff to obtain an order for the payment out of the sum which is awarded (see infra). of pro The rank which claims have against the proceeds in the Payment registry has already been pointed out (Part I. Ch. X.), but, ceeds. if claimants are in pari conditione, the one who has first obtained a decree is entitled to rank first against such proceeds (The Markland, L. R. 3 Ad. 340; 24 L. T. N. S. 596). out of To obtain payment of the money out of Court, r. 128 Payment A. C. R. 1859, comes into force: "All orders for the pay- Court. ment of money out of Court shall be signed by the judge." To obtain an order, application should be made in Chambers or in Court, and, a minute and the order being filed in the registry, the money will be paid out. If any person desires to prevent the payment out of the proceeds, he must enter a caveat against the payment out in the same manner as against a release from arrest: for procedure (see ante, O. v., p. 158). If there is any balance remaining in the registry after payment of the several claimants, it will be paid out according to the usual practice by means of an order of the judge. As soon as a specified sum has been ordered to be paid to a particular claimant, it becomes his property, so as to be available as assets for his creditors, subject to any lien which there may be on it, as that of a solicitor for his costs, who has the first claim on the fund, unless he fails to take proper means to assert his rights (The Olive, Swa. 423; The Albert Crosby, Lush. 101; The Jeff Davis, L. R. 2 Ad. 1).1 Where judgment is pronounced for a plaintiff in an action Judgment in personam, the methods of enforcing such judgment by in per 1 These cases partly raised the question of the rights of holders of garnishee orders over a fund under the control of the Court, but they seem to show that if these orders were properly brought to the notice of the Court, the claim to the fund will be recognised. in action sonam. In action of possession. Altering decree. execution, &c., which are common to all divisions of the High Court, may be employed (see post, O. xlii., et seq.). Where judgment is given for the plaintiff in an action of possession, a præcipe for a release must be filed in the registry, and the same procedure used as already mentioned in regard to a release (see ante, O. v., r. 11, p. 157; and, as to adding parties so as to obtain costs, see O. xvi., r. 13, p. 177). If judgment is given for the defendant when the ship has been arrested, the same procedure is applicable as mentioned in the last paragraph, and if bail has been given the Court makes as part of the decree an order dismissing the bail. When a decree has been made the Court has power, whilst the subject matter of the action is within its jurisdiction, to alter such decree if an obvious error has been committed by it in regard to such decree or order, and it has been brought to its notice as quickly as possible (The Monarch, 1 W. Rob. 21; The Markland, L. R. 3 Ad. 340; 24 L. T. N. S. 596), but it will be rescinded with reluctance (The Glenburn, Br. & L. 62). Execution. ORDER XLII. EXECUTION. 1. A judgment for the recovery by or payment to any person of money may be enforced by any or the modes by which a judgment or decree for the payment of money of any Court whose jurisdiction is transferred by the said Act might have been enforced at the time of the passing thereof. 2. A judgment for the payment of money into Court may be enforced by writ of sequestration, or, in cases in which attachment is authorized by law, by attachment. This rule has considerably enlarged the powers of the Admiralty Division. A writ of attachment was formerly the only remedy used in the Admiralty Court. Of course, as shown by the notes to the preceding order, where the res is in the power of the Court, writs of execution are unnecessary. 4. A judgment for the recovery of any property other than land The or money may be enforced : By writ for the delivery of the property : By writ of attachment: By writ of sequestration. See O. xlvii., O. xlix. 5. A judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal. recovery of property. of execu 6. In these rules the term "writ of execution" shall include writs Meaning of fieri facias, capias, elegit, sequestration, and attachment, and all of "writ subsequent writs that may issue for giving effect thereto. And the tion." term "issuing execution against any party" shall mean the issuing of any such process against his person or property as under the preceding rules of this order shall be applicable to the case. in fulfilment of 7. Where a judgment is to the effect that any party is entitled to Judgment any relief subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon the fulfilment of the con- contindition or contingency, and demand made upon the party against whom gency. he is entitled to relief, apply to the Court or a judge for leave to issue execution against such party. And the Court or judge may, if satisfied that the right to relief has arisen according to the terms of the judgment, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried in any of the ways in which questions arising in an action may be tried. 8. Where a judgment is against partners in the name of the firm, Against execution may issue in manner following: partners. (a.) Against any property of the partners as such : (6.) Against any person who has admitted on the pleadings that he is, or has been adjudged to be, a partner: (c.) Against any person who has been served as a partner with the writ of summons, and has failed to appear : If the party who has obtained judgment claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a judge for leave so to do; and the Court |